Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)

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PETER R. H LL ESQUIRPeter R. Hil , P.C.2250 N. D uid Hil s Rd. Suite 290Atlanta GA 30 29-0000

U.S Jus ic

E ec t ve O ce r gr t o Rev e

Board of Immigration AppealsO ce of the Clerk

5 07 leesbi g P ke, S te 2000Fa Church Vrg n a 2204

OHS CE ice of Chief Counsel A L180 Spring St eet Suite 332At anta GA 30303

Name: ENRIQ EZ PALAF X LUIS ALEJANDR A075 4 6189

Date of t is notice 3/29/2011

E c osed s co y o e Bo rd s dec s o d order t e ove re re ced c se

E c os re

P e e ersCole P r c A.ley oger

We dtl d d S

S cere y

o C rrC e Clerk

Cite as: Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)


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I

S. Depa tment of Ju icExecutive O ce r Immi tion Review

De s on of he Board of mmigra on Appeals

Fa s Ch h,Virginia 22041

File: A075 446 189- Atlanta, GA

In re: LUIS ALEJA ROENRQU Z-PALAFOX

R MOVAL PROC EDINGS

A AL

Date:

O BEHALF OF R SPO DE T: Peter R Hil , Esquire

O BEHALF OF HS: Nichole S Li libridgeAssistant Chief Co se

CHARGE:

-. n c: f "1 \ :'1 ) L ' ; I

otice: Sec 212(a)(6)(A)(i), & N Act[8 S C 182(a)(6)(A)(i) ]Present wit out being admitted or paro ed

odged: Sec 212(a)(2)(A)(i)(I), & N Act 8 U S 1 82(a)(2)(A)(i)(I)] Crime invo ving moral t rpitude

AP LICATION: Continu nce

T e respondent, a native and citizen of Mexico appeals t e migration udge's arc 2320 0, decision denying his motion to continue proceedings to await the adjudication of a f ilybased visa petition(Form 30), whic e contends, if approved, ould render im p ci e igib e r adjustment of s at s in conj nction wi a waiver of inadmissibilityS sections212(h) d 245(i) of t e Immigration a d ationality Act, 8 S C 1182(h) 255(i) T e appeawi be sustained The respondent s request r oral argu ent is denied8 C F R 003(e)(7)(2010)

We disagree with e migration Judge's decision to deny the respondent's motion to contias such decision was based upon an erroneous determination t at t e respondent was ba ed om

es ablishing eligibility r adjustment of status nder section 245(i) of the Act so ely because theForm 130 ed on his be alf on October 28,996, as timate y denied by the Immigration d at ra i t on e ce at 2; x at ab ) ur t to 8 124 i e denia oa q a i ing immigra t visa petition that was properly ed on or be re April 30, 200,and t at was"approvab e w en led, will not prec ude i s gra d thered a ien bene ciary om seekadj stment of s at s u der section 245(i) of the Act on e basis of another approved visa petition

or a visa petition to be deemed approvab e w en led nd thus e igib e r gra d er under section 245(i) of t e Act, it m st ave been:( ) properly led(2) meritorio s in ct d(3)not ivolous M er o R er Esp ol,24 I& N Dec 26 , 268( A 2007) We w l reman ismatter so he Immi tion dge may properly determine whether the respon ent has satis ed his



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A075 44 8

burde of est blishi g th t his p ior For 130 w s pprov ble whe led such th t hebe d the ed u der sectio 245(i) of the Act d could pu sue djust e t of st tusthe eve t

th t the pe ding o 30 led o his beh lf is pproved O re nd, the p rties y sub iddition l evi ence be r g on this issue Should the respo de t est blish th t he is d tlie , the i tio udge shou d co side the ctors out i ed iMater ofHashmi,24 & N Dec

785 ( 2009 to dete i e if rthe co tinu nce of hese proceedings is nted

O D he respo de t s ppe l is sust i ed

F O he record is re ded to the igr tio Cour r rther proceedi gsco siste twt the regoing opi io d r the e of ew decisio

2



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U DEPA T E T OF T CEEXECUTIVE OFFICE FO G AT ON EV EW

I IG ATION COU T

Atlanta Georg a

F le A 5 446 89 Date: arch 23 2

In the atter of

LUI ALE D O EN IQUEZ-PALAFOX IN E OV P OCEED G

spondent

C GE: 2 2 (a} (6) (A} ( } 2 2 (a} (2) ( A} ( } (I}

APPLICATION: Cont nuance for adjud cat on of an I 3

APPE CE :

ON BEHALF OF E PONDE T:

P ter eed H ll Esqu re

O BEHALF OF THE DEPA T E TOF HO EL D ECU ITY:

N cole L ll br dge Esqu re

O L DECI O OF THE I IG TION UDGE

The esp ndent s a male nat ve and c t zen of ex co

who was ssued a Not ce to Appear on eptember 28 2 8 He was

charged w th be ng subject to removal pursuant to the prov s ons

of ect on 2 2 (a } (6 ( A } ( } and an 26 that was f led n Apr l

3 2 9 n wh ch two add t onal allegat ons were prov ded and

an add t onal charge of removab l ty. ee Exh b t 2 In wr tten

plead ngs mar ed as Exh b t 3 the espondent adm tted


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(

allegations one through four and "the essence of the charges on

the I 26 and conceded 2 2 (a) (2) {A) {i) {I) on the I-26 . The

Court found that he was however removable as charged. The

Respondent sought a Velardi continuance or an I- 3 adjudication.

The issue here is that the Respondent had entered the

United States without being admitted or paroled so the only way

in which he could adjust his status in the nited States would be

if he had had an I- 3 visa application that was filed on or

before April 3 2 which was approvable when filed. The

matter was continued to provide proof of that

The Government provided evidence see Exhibit 4 which

includes a denial of the I- 3 and the 485 that were filed. Those

denials took place on September 24 99 The fact that the

application the I 3 was denied indicates to this Court that it

was not in fact approvable when filed. No appeal was ta en of

this decision. Respondent's counsel see Exhibit 5 argues that

only CIS can make a determination of whether or not if they

adjudicated a second I- 3 that the first one was approvable when

filed. However this reasoning is not persuasive because CIS can

approve an I 3 without any regard to the previous I- 3 . The

act of the matter is that the first I- 3 that was filed prior to

pril 3 2 was not approved. Thus it was not approva le

when filed. Accordingly the Court finds that the Respondent

cannot establish that he would be grand athered and eligible to

see adjustment of status in the nited States pursuant to the

A 5 446 89 2 March 23 2


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prov s ons of Se t on 24 ( }

Be ause there are no appl at ons that th s Court an

ons der the Court w ll not grant a ont nuan e for the

adjud at on of the I- 3 . The Court w ll however grant the

Respondent 6 da s voluntary departure that per od of t me to run

unt l a 24 2 , thus preserv ng the Respondent s r ght to

appeal th s de s on to the Board of Imm grat on Appeals

The follow ng order w ll be thereb entered

ORDER

IT IS HEREBY O DERED that the Respondent s found

removable as ha ged on the Form I-26 .

IT IS RT ER O ERED that the Respondent s request for

a ont nuan e pu suant to Velard for the adjud at on of another

- 3 be and the same s hereb den ed.

IT IS FURT ER ORDERED that the Respondent be granted 6

da s voluntary departure that per od to run unt l a 24 2 .

Should he fa l to depart b th s date or b an date set b an

rev ew ng ourt th s w ll automat all be ome an Order of

Removal to h s ountr of nat v t and t zensh p on the harges

A 5 446 89 3 ar h 23 2


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ont ned n the Not e to Appe r nd the Respondent w be

b e or $3000 v oney pen ty

t: SEASEgr t on Judge

A 5 6 89 M r h 23, 201


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CERTIFICATE PA E

( .

I hereby certify th t the tt che procee i g before

CE A SEASE i the tter of:

LUIS ALE ANDR ENRIQUEZ PALAF X

A 75 446 189

Atl t Georgi

w hel herei ppe r th t thi i the origi l

tr n cript thereof for the file of the Executive ff ice for

Immigr tio Review

n / eh

Nicol Delph Tr n criber

Y RK STENO APHIC SERVICES INC34 North George StreetYork Pe ylv ni 174 1-1266(717} 854- 77

May 11 2 1Co et o D te

Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)

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